Supreme Court New South Wales Medium Neutral Citation: Hole v Gregory Ronald Lyons trading as Greg Lyons Building Constructions [2020] NSWSC 102 Hearing dates: 13 February 2020 Decision date: 13 February 2020 Jurisdiction: Common Law Before: Button J Decision: (1) Plaintiff granted leave to commence proceedings against the second defendant, pursuant to s 151D(2) of the Workers Compensation Act 1987. (2) Plaintiff must pay the costs of the second defendant pertaining to this motion. (3) The costs referred to in order 2 do not become payable until the conclusion of the proceedings. Catchwords: WORKERS COMPENSATION – s 151D(2) Workers Compensation Act 1987 (NSW) – leave to commence proceedings more than three years after the injury – whether it was fair and just to grant leave – adequacy of explanation for delay – no evidence of prejudice –leave granted to commence proceedings – costs pertaining to the motion to be paid by the plaintiff Legislation Cited: Workers Compensation Act 1987 (NSW) ss 151D(2), 151DA(3)(b) Civil Liability Act 2002 (NSW) Cases Cited: Smith v Grant [2006] NSWCA 244 Category: Procedural and other rulings Parties: David Hole (Plaintiff) Greg Lyons Building Constructions (First Defendant) Briter Door Solutions Pty Ltd (Second Defendant) Representation: Counsel: J Roberts SC/A Cooley (Plaintiff) H Halligan (Second Defendant) Solicitors: Slater and Gordon Lawyers (Plaintiff) Hicksons Lawyers (Second Defendant) File Number(s): 2016/60941 EX TEMPORE JUDGMENT - revised 1. This is an application under s 151D of the Workers Compensation Act 1987 (NSW) (the Act) for leave to proceed, as it were, out of time. It came before me in the Duty list today. 2. In a nutshell, the substantive claim of the plaintiff, Mr Hole, is that he was working at the Katoomba RSL, which was being renovated. On 23 April 2013 he suffered an injury when, as an on-site workman, he fell into a hole in the premises that had been put there, allegedly, as part of the renovations. 3. The first defendant is a licensed builder, and the claim against that entity is brought pursuant to the Civil Liability Act 2002 (NSW). Senior counsel for the plaintiff explained that of course s 151D of the Act has no application to such a claim, and in any event there is no statute of limitations problem. 4. The second defendant, Briter Doors Solutions Pty Ltd, was the employer of the plaintiff, allegedly, and the claim is pursuant to the Act. Accordingly, s 151D has a role to play. 5. The injury allegedly occurred on 23 April 2013. Prima facie, the limitation in the section expired on 23 April 2016. 6. It is not disputed by senior counsel for the plaintiff that the statement of claim in question was filed as late, as it were, as on 22 January 2019; in other words, a period of two years, nine months late. 7. Having said that, on reflection, senior counsel has submitted that it is quite possible that s 151DA(3)(b) of the Act has a role to play, at least with a regard to a period of six months. I respectfully think that is quite possible. 8. But in any event, I think that the disposition of this matter is clear, even if one takes the ancillary view that the period in play is indeed two years, nine months. 9. I hasten to add that that is not insignificant, and it is not to be dismissed as a matter of weeks or months. But I do think that senior counsel has put forward a number of very sound bases for the grant of leave. 10. He has submitted, and I respectfully accept, that although the words of the section are rather bald in terms of simply speaking of "leave", there has been judicial illumination of what underpins that. And, in particular, he submitted that I would find the judgment of McColl JA in Smith v Grant [2006] NSWCA 244 very helpful as to principle, and I respectfully do. 11. There are a number of factors that one needs to look to, but the underpinning question, I think it is fair to say, is whether it would be "fair and just" to grant leave. 12. Important, of course, is the question of prejudice to one's opponent. 13. Senior counsel has spoken of "presumptive prejudice", in the sense that the sheer effluxion of time is something that is itself disadvantageous, in terms of persons, human or corporate, being in a position to order their affairs without suddenly, out of the blue, months or years later, finding out they are the subject of litigation. I understand that senior counsel accepts that general proposition. 14. But here he submits that there is no evidence of actual prejudice on the part of his opponent whatsoever. Indeed, his position is that, on the evidence, I would be affirmatively satisfied that there is no actual prejudice. 15. I might add that Mr Halligan of counsel for the second defendant has patiently been present all day, out of courtesy and a desire to assist on behalf of the second defendant. He made it clear that the application is neither consented to nor opposed. I also accept his submission that it is not a matter whereby he was entitled to, as it were, simply "let the matter go through to the keeper", because of the way the legislation is constructed. Rather, it is a matter for the Court needing to be satisfied affirmatively that leave should be granted. 16. Senior counsel for the plaintiff has accepted that here there has been a substantial passage of time, but he has pointed to five factors. I will recount them in no particular order of importance. 17. First, he submitted that it was necessary, as is very common in a workers compensation claim or a personal injury claim, for there to be a "settling" of the medical condition of the plaintiff. I think he referred to a state of "maximum medical improvement". In particular, he explained that in this area of dispute there is a need to have a clear picture as to whole person impairment (WPI), because there is a statutory, bright line cut-off point below which a plaintiff is disadvantaged. His position is that it was not until early 2017 that that position was clear. 18. The second factor is that there were efforts undertaken by the solicitors for the plaintiff to obtain liability evidence. He said that, to some degree, respondents to subpoenas and so forth were a little bit dilatory in responding. 19. He has also said, as I have indicated, that there was a pre-filing statement that was put on in July 2018. It is not just that he submits that it is quite possible that the statutory "clock" stopped after that. It is also his submission, which I accept, that that was part of the whole bureaucratic/administrative structure that is in place that seeks to avoid, if possible, curial resolution of claims such as these. His point is that, inevitably, that sort of alternative resolution takes some time, with the effect that, if one pursues that path and it ultimately does not come to fruition, inevitably the filing of a statement of claim will be delayed. 20. Fourthly, senior counsel has accepted that, with the benefit of hindsight and without being, as it were, personally critical of anybody, things could perhaps have been done better. He accepts that there was a period that was not covered by what I call the medical settling when things could have been pursued more speedily legally on behalf of the plaintiff. 21. Having said that, he has also made the point that, in the nature of claims such as this, until one is satisfied that the degree of WPI does not stand in the way of success, a solicitor would be rather loath to expend significant sums in pursuit of the claim, simply because that ultimately might be money thrown away. I think there is force in that. I also think there is force in the proposition that one should not, with the benefit of hindsight, be too critical of the legal work of others. 22. The other aspect is there have been a number of changes of solicitors within the firm, I believe. Again, I think that that can lead to its own disruption. 23. The other two matters (which make up the fifth factor) in terms of delay are that for a short time there was a problem in terms of reporting doctors being provided with suitable fees. 24. Also, for a very short time, there was a period when the plaintiff - who alleges that he suffered physical as well as psychological injuries from the accident - became exasperated, and for no more than a month or so refused to co-operate with his lawyers. 25. Overarchingly, the submission of senior counsel for the plaintiff is, I think it is fair to say, an acceptance that this is late, but an explanation that there is a whole structure, external to the Court in which litigation is to commence, in which one must engage in an effort to have the matter resolved away from Court. I think there is significant force in that. 26. The other, to my mind, compelling aspect of this matter is that it is not the case that anybody involved in this litigation is taken by surprise. And it is not the case that anybody is asserting that documents have been destroyed, witnesses have gone overseas, or anything of that nature. 27. I think it is true that, speaking generally, the longer things take, the more memories fade, and the less precise evidence must be. But without descending to a level of detail, I believe it has been perfectly clear to all of the entities involved– ever since the date of the accident – that it would be quite possible that there would be a litigious dispute. And certainly the evidence shows that, from a period early in 2014, the insurer of the second defendant was making investigations about what had happened, why it had happened, how it had happened, and who might be to blame for it. 28. In all the circumstances that I have set out, and without descending to a greater level of analysis as to principle, and bearing in mind in particular the considered position of counsel for the second defendant not to oppose the grant of leave, I am soundly satisfied that the orders sought in the motion of the plaintiff should be made. 29. Having said that, I also think the agreed position that the costs of today of the second defendant must be borne by the plaintiff is soundly appropriate. 30. In short then, in accordance with the motion, I make the following order: 1. An order nunc pro tunc (that is, retrospectively) that the plaintiff be granted leave to commence these proceedings against the second defendant, pursuant to s 151D(2) of the Workers Compensation Act 1987 (NSW) by the first amended statement of claim filed on 22 January 2019. 2. The plaintiff must pay the costs of the second defendant pertaining to this motion. (His Honour enquired of counsel whether any other order was sought.) 3. The costs referred to in my order 2 do not become payable until the conclusion of the proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 February 2020